CHARLES NUZUM, JOHN HARRIS, AND SERGIO ABREU, PETITIONERS,
v.
RENE VALDES AND FLORIDA BEVERAGE LICENSE, INC., A FLORIDA CORPORATION, RESPONDENTS
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The Florida District Court of Appeal held that a trial court improperly prohibited the Department of Business Regulation from providing counsel to state officials sued in their individual capacities for acts arising from their official duties. The court determined that the decision to provide legal representation under Florida Statute 111.07 is primarily an executive function, not a judicial one, and that premature judicial determination of whether officials acted in bad faith would chill proper performance of official duties.
The trial court order prohibiting representation was improper and was quashed. Florida Statute 111.07 grants state agencies primary authority to determine whether to provide counsel to officers and employees for actions arising from their official duties, and this determination is an executive function not subject to judicial intervention at the pleading stage based on unproven allegations of bad faith.
[1] A governmental unit is authorized to provide an attorney to defend its officers, employees, or agents in civil actions for acts or omissions arising out of and in the sco…
[2] A governmental unit's authorization to provide defense counsel to its officers, employees, or agents does not apply in tort actions if the officer, employee, or agent act…
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Join FLexlaw to unlock all legal intelligence“Any agency of the state, or any county, municipality, or political subdivision of the state is authorized to provide an attorney to defend any civil actions brought against any of its officers, employees, or agents for acts or omissions arising out of and in the scope of their employment or function, unless, in the case of a tort action, such officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”
Establishes the statutory authority for agencies to provide legal representation to officers and employees for actions arising from official duties.
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Join FLexlaw to unlock all legal intelligenceThe Director of the Division of Alcoholic Beverages and executive employees of the Division were sued personally by Valdes and Florida Beverage Licens…
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NESBITT, Judge.
The petitioners are, respectively, the Director of the Division of Alcoholic Beverages and executive employees of the Division. The respondents, Valdes and Florida Beverage License, Inc., commenced a civil action against the petitioners personally alleging an interference with advantageous business relationships as well as the intentional tort of conspiracy. The complaint alleges that they acted in bad faith and with a malicious purpose. On motion of the plaintiffs, the trial court entered an order prohibiting staff counsel from the Department of Business Regulation from the further representation of the petitioners in their individual capacities. We have entertained the petitioners’ application for common law certiorari and review this order because we have determined it constitutes a material injury not remediable after final JUDGEMENT.
Section 111.07, Florida Statutes (1979) provides, in pertinent part:
Any agency of the state, or any county, municipality, or political subdivision of the state is authorized to provide an attorney to defend any civil actions brought against any of its officers, employees, or agents for acts or omissions arising out of and in the scope of their employment or function, unless, in the case of a tort action, such officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. This statute recognizes the common law principle that a public officer is entitled to representation at the public expense in a lawsuit arising from performance of official duties while serving a public purpose. Markham v. State, Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974); Duplig v. City of South Daytona, 195 So. 2d 581 (Fla. 1st DCA 1967).
To deny a public official representation for acts purportedly arising from the performance of his official duties would have a chilling effect upon the proper performance of his duties and the diligent representation of the public interest.
Our study of the statute leads us to conclude that it was the intention of the Legislature that the primary determination as to the allowance of counsel be placed in the respective governmental unit rather than with the judiciary upon challenge by a private litigant.1 Our view is buttressed by the fact that a court is not in a position to determine whether an officer, agent, servant, or employee has acted in bad faith or with a malicious purpose until the case has been terminated upon the merits. At such a point, legal services then being provided by the agency have been substantially concluded. Consequently we find that the activation of the statute is primarily an executive function.
For the foregoing reasons, the order prohibiting staff counsel of the Florida Department of Business Regulation from representing the director and employees of one of its divisions personally constitutes a departure from the essential requirements of law for which we award them certiorari and quash the order. . This of course does not preclude other properly authorized public officials like the attorney general from challenging expenditures made thereunder. See Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981).
Cases With Similar Vibessemantic neighbors from the corpus
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Thornber v. City OF Fort Walton Beach, 568 So. 2d 914 (Fla. 1990)…ison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981). The purpose of this common law rule is to avoid the chilling effect that a denial of representation might have on public officials in performing their duties properly and diligently. Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981). This entitlement to attorney’s fees arises independent of statute, ordinance, or charter. Lomelo, 423 So. 2d at 976. For public officials to be entitled to representation at public expense, the litigation must (1) arise out of or…
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Metro. Dade Cnty. v. Evans, 474 So. 2d 392 (Fla. 3d DCA 1985)…case against him was dismissed with prejudice pursuant to a settlement effected by the county, and that he was therefore entitled to reimbursement of his attorney’s fees under section 111.07, Florida Statutes (1983).1 See generally, Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981). Since the dismissal operated to terminate finally any proceeding against the officer, see Sacks v. Rickies, 155 So. 2d 400 (Fla. 3d DCA 1963), and, as we held in State Department of Health and Rehabilitative Services v. Hall, 409…
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The City OF Fort Walton Beach v. Al Grant, 544 So. 2d 230 (Fla. 1st DCA 1989)…aint. Section 111.07 recognizes the common law doctrine that a public officer is entitled to an attorney at the expense of the public in litigation arising from the performance of his official duties while serving a public purpose. Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981); Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981); Markham v. State Dept. of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974); Duplig v. City of South Daytona, 195 So. 2d 581 (Fla. 1st DCA 1967); Peck v. Spencer, 26 Fla. 23, 7 So. 6…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Duplig v. City OF S. Daytona, 195 So. 2d 581 (Fla. 1st DCA 1967)
- Markham v. State, 298 So. 2d 210 (Fla. 1st DCA 1974)
- Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981)